Clarel Strausburg and Kandy Strausburg v. Town of Bryant (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 31, 2017
• Docket: 38A02-1702-SC-329
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 31 2017, 9:23 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT Brian M. Pierce Muncie, Indiana

IN THE COURT OF APPEALS OF INDIANA

Clarel Strausburg and July 31, 2017 Kandy Strausburg, Court of Appeals Case No. Appellants-Defendants, 38A02-1702-SC-329 Appeal from the Jay Superior v. Court The Honorable Max C. Ludy, Jr., Town of Bryant, Judge Appellee-Plaintiff Trial Court Cause No. 38D01-1606-SC-157

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 38A02-1702-SC-329 | July 31, 2017 Page 1 of 3 [1] Clarel and Kandy Strausburg own multiple properties in Bryant, Indiana. On

June 7, 2016, the Town of Bryant (the Town) filed a small claims action against

the Strausburgs for failure to pay sewage bills on some of their properties.1

[2] Sewage and trash collection is governed by the Town’s ordinances. Pursuant to

those ordinances, the standard cost for sewage services is $29.85 per month.

Under certain circumstances, rate reductions may apply. For example, a house

that has been vacant for at least six months may be eligible for an “empty rate”

of $10 per month. Appellant’s App. Vol. II p. 5. The Strausburgs believe that

they should have been charged the empty rate on some of their properties rather

than the full standard rate.

[3] Ordinance Number 1992-32 provides for a consumer appeal procedure

“‘whereby a user shall have the right to appeal a decision of the administrator of

the sewer system and user charge system to the Town Council and that any

decision concerning the sewage system or user charges of the Town Council

may be appealed to the Circuit Court of the county.’” Id. at 7.

[4] There is no evidence in the record that the Strausburgs sought relief from the

Town Council. Instead, they simply stopped paying their bills. The trial court

found that the Strausburgs “wanted to litigate said charges in small claims court

1 The complaint is not included in the record on appeal. 2 This ordinance is not included in the record on appeal, but the trial court included the relevant language in its order.

Court of Appeals of Indiana | Memorandum Decision 38A02-1702-SC-329 | July 31, 2017 Page 2 of 3 which completely bypassed the Town Council and the circuit court review and

appeal procedures.” Id. Ultimately, the trial court ruled in favor of the Town,

finding that the Strausburgs had failed to pay their bills and, as such, were liable

to the Town for the unpaid bills as well as late fees.

[5] The Strausburgs argue on appeal that the trial court inappropriately raised the

affirmative defense of exhaustion of administrative remedies on behalf of the

Town. We disagree with that framing of the trial court’s analysis. It is evident

that the trial court merely examined the relevant ordinances and found that,

because the Strausburgs failed to challenge their bills pursuant to the Town’s

ordinances, as a matter of law, they had no defense to their failure to pay the

sewage bills. Based on this record, we see no reason to second-guess the trial

court in that regard.

[6] The judgment of the trial court is affirmed.

Bailey, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 38A02-1702-SC-329 | July 31, 2017 Page 3 of 3